Exhibit 10.1


 


FOURTH AMENDMENT


 


THIS FOURTH
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”)
is entered into as of the 18th day of June, 2004 by and among each
of the persons listed on the signature pages hereof as banks (the “Banks”),
Crosstex Energy Services, L.P., a Delaware limited partnership (the “Borrower”),
and Union Bank of California, N.A., as administrative agent (the “Administrative
Agent”).


 


BACKGROUND


 


A.            The Banks, the
Administrative Agent and the Borrower are parties to that certain Second
Amended and Restated Credit Agreement dated as of November 26, 2002, as amended
by the First Amendment dated as of June 3, 2003, the Second Amendment dated as
of October 30, 2003 and the Third Amendment dated as of April 1, 2004 (said
Agreement, as so amended, herein called the “Credit Agreement”).  Terms defined in the Credit Agreement and
not otherwise defined herein have the same respective meanings when used
herein.


 


B.            The Borrower intends
to amend the Note Agreement in order to issue up to an additional $75,000,000
in principal amount of its Senior Secured Notes in one or more additional
series.


 


C.            The Borrower has
requested, and the Majority Banks have agreed, to (1) consent to the issuance
of Debt under the Note Agreement in an aggregate principal amount not to exceed
$125,000,000, and (2) make certain other amendments to the Credit Agreement.


 


AGREEMENT


 


NOW THEREFORE,
in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are all hereby acknowledged, the Borrower and the Majority Banks
(which are all of the Banks required under the Credit Agreement to make the
amendments and give the consents contemplated hereunder) hereto covenant and
agree as follows:


 


Section 1.               Amendments.


 


(a)           Section 6.02 of the
Credit Agreement is hereby amended as follows:


 


(i)            Section 6.02(j) of the
Credit Agreement is hereby amended in its entirety as follows:


 


(j)            Debt under the Note
Agreement in an aggregate principal amount not to exceed $125,000,000;


 


(ii)           Section 6.02(k) of the
Credit Agreement is hereby amended in its entirety as follows:


 

















 


(k)           unsecured Debt of the
Borrower, a Finance Entity and/or any Guarantor, and/or any unsecured guaranty
by the Borrower or any Guarantor of Debt of the MLP or any other Affiliate of
the Borrower; provided that (i) the Borrower is in compliance with
Section 6.14 immediately after giving effect to the incurrence of any such Debt
(and in the case of any guaranty of Debt of the MLP or any other Affiliate of
the Borrower, the aggregate amount of such Debt so guaranteed shall be “Funded
Debt” of the Borrower for purposes of calculating the Leverage Ratio), (ii)
such Debt does not impose any financial or other “maintenance” covenants on the
Borrower or any of the Subsidiaries that are more onerous than the covenants
set forth in this Agreement, (iii) such Debt shall not require any scheduled
payment on account of principal (whether by redemption, purchase, retirement,
defeasance, set-off or otherwise) prior to the Revolver A Termination Date or
the Revolver B Termination Date and (iv) such Debt shall contain terms and
conditions that are customary for such transactions;


 


(b)           Section 6.15 of the
Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:


 


Section 6.15.          [Intentionally omitted].


 


(c)           A new Section 6.19 of
the Credit Agreement is hereby added as follows:


 


Section 6.19.          Other Debt.  The Borrower may not make any optional or
scheduled payments or prepayments on account of principal (whether by
redemption, purchase, retirement, defeasance, set-off or otherwise) in respect
of any unsecured Debt incurred pursuant to Section 6.02(k) prior to the
Revolver A Termination Date and the Revolver B Termination Date, other than
principal payments not exceeding $3,000,000 in the aggregate over the term of
this Agreement.  The Borrower shall not
amend, supplement or otherwise modify the terms of any Debt incurred under Section
6.02(k) if such amendment, supplement or other modification would not be
permitted by the terms of Section 6.02(k) without the prior written consent of
the Majority Banks, which consent will not be unreasonably withheld.


 


Section 2.               Consent and
Waiver.  The Majority Banks hereby
consent to the Letter Amendment No. 2 to the Note Agreement to permit the
issuance of up to an additional $75,000,000 in principal amount of Senior
Secured Notes in one or more additional series.  This consent is limited to the extent described herein and shall
not be construed to be a consent to or a waiver of any other actions prohibited
by the Credit Agreement or any other Credit Document.


 


Section 3.               Conditions
Precedent.  This Amendment shall
become effective as of the date first set forth above when:


 


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(a)           the Borrower shall have
paid to the Administrative Agent for the account of each Bank a non-refundable
amendment fee of $150,000.00 and all costs and expenses which have been
invoiced as of June 15, 2004 and are payable pursuant to Section 9.04 of the
Credit Agreement;


 


(b)           the Administrative
Agent shall have received all of the following, each dated the date hereof, in
form and substance satisfactory to the Administrative Agent and in the number
of originals requested by the Administrative Agent:


 


(i)            this Amendment, duly
executed by the Borrower, the Majority Banks and the Administrative Agent;


 


(ii)           one or more consents to
this Amendment, duly executed by each Guarantor that has previously executed a
Guaranty;


 


(iii)          a certificate from a
Responsible Officer stating that (A) all representations and warranties of the
Borrower set forth in the Credit Agreement, each of the other Credit Documents
to which it is a party and this Amendment as of such date are true and correct
in all material respects, except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct in all material
respects on such earlier date; (B) no Default has occurred and is continuing;
and (C) the conditions in this Section 3 have been met;  and


 


(iv)          an executed copy of the
Letter Amendment No. 2 to Note Agreement, certified by a Responsible Officer as
being a true and correct copy of such document, in form and substance
acceptable to the Administrative Agent.


 


Section 4.               Representations
and Warranties.  The Borrower
represents and warrants to the Banks and the Administrative Agent as set forth
below:


 


(a)           The execution, delivery
and performance by the Borrower of this Amendment are within the Borrower’s
legal powers, have been duly authorized by all necessary partnership action and
do not (i) contravene the Borrower Partnership Agreement, (ii) contravene any
Governmental Rule or contractual restriction binding on or affecting the
Borrower or (iii) result in or require the creation or imposition of any Lien
(other than any created by the Credit Documents) upon or with respect to any of
the properties of the Borrower.


 


(b)           No Governmental Action
is required for the due execution, delivery or performance by the Borrower of
this Amendment.


 


(c)           This Amendment
constitutes legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors’ rights generally or by general
principles of equity.


 


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(d)           The execution, delivery
and performance of this Amendment do not adversely affect any Lien of the
Security Documents.


 


(e)           The quarterly and
annual financial statements most recently delivered to the Banks pursuant to
Sections 5.01(c) and (d) of the Credit Agreement fairly present the
Consolidated financial condition of the Borrower and its Subsidiaries as of the
respective dates thereof and the Consolidated results of the operations of the
Borrower and its Subsidiaries for the respective fiscal periods ended on such
dates, all in accordance with GAAP applied on a consistent basis (subject to
normal year-end audit adjustments and the absence of footnotes in the case of
the quarterly financial statements). 
Since December 31, 2003 there has been no material and adverse change in
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any of its Subsidiaries.  The Borrower and its Subsidiaries have no
material contingent liabilities except as disclosed in such financial
statements or the notes thereto.


 


(f)            There is no pending
or, to the knowledge of the Borrower, threatened action or proceeding affecting
the Borrower or any Subsidiary before any Governmental Person, referee or
arbitrator that could reasonably be expected to have a Material Adverse Effect.


 


(g)           No event has occurred
and is continuing, or would result from the effectiveness of this Amendment,
that constitutes a Default.


 


(h)           No event or events has
occurred which, individually or in the aggregate have had or could reasonably
be expected to have a Material Adverse Effect.


 


Section 5.               Reference to and
Effect on the Credit Agreement.


 


(a)           On and after the
effective date of this Amendment, each reference in the Credit Agreement to
“this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall
mean and be a reference to the Credit Agreement, and each reference in the
other Credit Documents to “the Credit Agreement,” “thereunder,” “thereof,”
“therein” or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended by this Amendment.


 


(b)           Except as specifically
amended above, the Credit Agreement and the other Credit Documents shall remain
in full force and effect and are hereby ratified and confirmed.  Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein
do and shall continue to secure the payment of all obligations stated to be
secured thereby under the Credit Documents.


 


(c)           Except as expressly set
forth herein, the execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Administrative
Agent or any Bank under any of the Credit Documents or constitute a waiver of
any provision of any of the Credit Documents.


 


Section 6.               Execution in
Counterparts.  This Amendment may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each which when so executed and


 


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delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. 
Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of an originally
executed counterpart of this Amendment.


 


Section 7.               Governing Law;
Binding Effect.  This Amendment
shall be governed by, and construed and enforced in accordance with, the laws
of the State of Texas, and shall be binding upon the Borrower, the
Administrative Agent, each Bank and their respective successors and assigns.


 


Section 8.               Costs and
Expenses.  The Borrower agrees to
pay on demand all costs and expenses of the Administrative Agent in connection
with the preparation, execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, including the reasonable
fees and out-of-pocket expenses of counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities hereunder and thereunder.


 


[Remainder of this page blank; signature page follows]


 


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  Executed as of the 18th day of
  June, 2004.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CROSSTEX ENERGY SERVICES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CROSSTEX OPERATING GP, LLC,

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William W. Davis

  
	
   

  	
   

  	
  William W. Davis

  
	
   

  	
   

  	
  Executive Vice
  President and Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
					



 

















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,

  
	
   

  	
  as Lead Arranger, Administrative Agent and
  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Clark

  	
   

  
	
   

  	
   

  	
   John Clark

  
	
   

  	
   

  	
   Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ali Ahmed

  	
   

  
	
   

  	
  Name:

  	
  Ali Ahmed

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
							



 

















 


	
   

  	
  THE ROYAL BANK OF CANADA,

  
	
   

  	
  as Co-Arranger, Syndication Agent and Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lorne Carter

  	
   

  
	
   

  	
  Name:

  	
  Lorne Carter

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
						



 

















 


	
   

  	
  FLEET NATIONAL BANK,

  
	
   

  	
  as Documentation Agent and Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allison I. Rossi

  	
   

  
	
   

  	
  Name:

  	
  Allison I. Rossi

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew J. Purchase

  	
   

  
	
   

  	
  Name:

  	
  Matthew J. Purchase

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven A. Mackenzie

  	
   

  
	
   

  	
  Name:

  	
  Steven A. Mackenzie

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Larry Robinson

  	
   

  
	
   

  	
  Name:

  	
  Larry Robinson

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Cox

  	
   

  
	
   

  	
  Name:

  	
  Mark Cox

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION,

  
	
   

  	
  as Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


	
   

  	
  GUARANTY BANK,

  
	
   

  	
  as Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim R. Hamilton

  	
   

  
	
   

  	
  Name:

  	
  Jim R. Hamilton

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President